Bd. of Trs. v. Fraternal Order of Police

174 N.E.3d 447

BOARD OF TRUSTEES, Miami Township, MONTGOMERY COUNTY, Ohio, Plaintiffs-Appellants

v.FRATERNAL ORDER OF POLICE, OHIO LABOR COUNCIL, INC., et al., Defendants-Appellees

No. 28996

Court of Appeals of Ohio, Second District, Montgomery County.

Rendered on June 18, 2021

W. JOSEPH SCHOLLER, III, Atty. Reg. No. 0072764, ALEXANDER L. EWING, Atty. Reg. No. 0083934 and CHARLES B. GALVIN, Atty. Reg. No. 0091138, 9277 Centre Point Drive, Suite 300, West Chester, Ohio 45069, Attorneys for Plaintiffs-Appellants.

STEPHEN S. LAZARUS, Atty. Reg. No. 0041368 and ALEXANDER N. BECK, Atty. Reg. No. 0097008, 30 Garfield Place, Suite 915, Cincinnati, Ohio 45202, Attorneys for Defendants-Appellees.

OPINION

TUCKER, P.J.

[174 N.E.3d 536]

{¶ 1} Plaintiff-appellant Miami Township Board of Trustees ("the Board") appeals from a judgment of the Montgomery County Court of Common Pleas, which denied its application to vacate an arbitrator's decision that reversed the employment termination imposed by the Board upon Douglas Hesler. The Board challenges the court's finding that the arbitrator did not exceed her authority under the terms of the collective bargaining agreement (CBA) executed by and between the Board and the police union. The Board also asserts that the arbitrator's order to reinstate Hesler violated public policy.

{¶ 2} Because we conclude that the arbitrator did not exceed her authority, we must conclude that the trial court did not err in denying the application to vacate. We further conclude the arbitrator's award did not violate public policy. Accordingly, the judgment of the common pleas court is affirmed.

I. Facts and Procedural Background

{¶ 3} Hesler was hired as a police officer by the Miami Township Police Department in 2007.¹ On March 8, 2018, Hesler and another officer, Scott Miller, were summoned to a meeting with Captain John Magill. Magill informed the officers that they were the subject of an internal investigation and that they were entitled to union representation during the meeting. Hesler and Miller indicated they would represent one another in their official capacities as Vice-President and President, respectively, of the police union. As a result of that investigation, Hesler received a five-day suspension, which he appealed. The matter proceeded to arbitration. An arbitration hearing was conducted on February 13, 2019, following which the arbitrator affirmed the suspension.

{¶ 4} Of relevance to this appeal, during that February 2019 arbitration hearing, counsel for Hesler questioned Magill on cross-examination regarding an alleged statement made by Magill to Hesler. When Magill denied making the statement, counsel asked, "[w]ould you be surprised if we have it on a recording if you heard yourself say that?" Exh. D-9, p. 80. Magill replied by indicating such a recording would violate departmental policy.

{¶ 5} The recording policy to which Magill referred was set forth in Special Order Number 15-02, entitled "Workplace Recording Policy" ("the Recording Policy"), which provides in pertinent part as follows:

No employee or member of the Police Department for Miami Township, Ohio may record or attempt to record a conversation of any other employee or member of this department without the express knowledge and consent of all parties involved in the conversation.

* * *

This policy is not intended and should not be interpreted to interfere with the rights of employees to engage in any concerted activity that is protected under

[174 N.E.3d 537]

the National Labor Relations Act, or any other applicable laws or regulations.

{¶ 6} The day after that arbitration hearing, on February 14, 2019, Magill summoned Hesler to his office for an "informal meeting." Exh. C, p. 34. However, when Magill arrived for the meeting, Sergeant Julie Fiebig and Captain Charlie Stiegelmeyer were also present in Magill's office. Magill asked Hesler whether he had made a recording of the March 8, 2018 meeting. According to Magill, Hesler replied, "yes, I do, or yes, I did, I made an audio recording, I can't find them." Exh. C, p. 35. Magill then told Hesler to "stop" and told him to leave the office. Magill also told Hesler he had made an "error" if he had made a recording. Id. at p. 36. Magill indicated that he ended the meeting because there were "contractual guarantees and processes that we need to invoke and enact before we conduct internal investigations." Id.

{¶ 7} Magill immediately obtained permission to proceed with an internal investigation of the matter, and within 45 minutes of the "informal meeting," he summoned Hesler back to his office. Fiebig was still present at that time, and Hesler was provided written notice of the investigation. Hesler admitted that he had tried to make a recording, but he had later discovered that his recording device did not capture the conversations during that meeting.

{¶ 8} Because he believed that Hesler's statements during the first and second meetings were inconsistent and that Hesler was being untruthful, Magill recommended termination of Hesler's employment. A pre-disciplinary notice was provided to Hesler, and a pre-disciplinary conference was conducted on May 6, 2019. Hesler had union representation during the conference. Following the conference, the hearing officer concluded Hesler had violated the Recording Policy. The hearing officer also found a violation of General Order 1.2.10 Core Values and General Order 26.1.1 of the Code of Conduct, both of which relate to honesty and truthfulness. Hesler's employment was terminated on May 20, 2019.

{¶ 9} Hesler appealed the termination in accordance with the terms of the collective bargaining agreement executed between the Board and the Miami Township Police Union, and the matter proceeded to arbitration. An arbitration hearing was conducted on November 13, 2019, at which the Board argued that Hesler's prior disciplinary history and the violation of the Recording Policy, coupled with Hesler's dishonesty when questioned about the recording, constituted just cause for termination.² The Union argued that Hesler was terminated without just cause and that there were procedural violations associated with the termination. The Union asked that Hesler be reinstated and made whole.

{¶ 10} Testimony adduced during the 2019 arbitration hearing included Magill's above-cited testimony setting forth the two meetings he had with Hesler on February 14, 2019. Magill also testified that Hesler admitted he knew it was a violation of policy to make the recording. A memo executed by Magill to memorialize the incident was introduced into the arbitration record. In that memo, Magill indicated that when he later summoned Hesler back to his office to continue the investigation into the recording, Hesler stated he had set his cell phone to record the March 8

[174 N.E.3d 538]

meeting but "after the meeting he found that there was no recording or he could not find the recording on his phone." Exh. D-11.

{¶ 11} Stiegelmeyer testified that he was present when Magill first summoned Hesler to his office regarding the recording issue. According to Stiegelmeyer, when Magill asked him if he had recorded the March meeting, Hesler responded affirmatively and also indicated he did not know where "they" were. Exh. C, p. 69. Hesler also admitted he was aware the recording violated department policy. According to a memo prepared by Stiegelmeyer regarding the incident and introduced during the hearing, Hesler stated he did not know "where he put the recordings." Exh. D-26. Stiegelmeyer noted Magill stopped the interview at that point.

{¶ 12} A memo executed by Fiebig was also introduced into the hearing. It indicated that Hesler, when asked about the recording, stated, "yes there are recordings but I don't have them." Exh. D-12. The memo further noted that when Hesler returned to Magill's office, he stated he had set his cell phone to record, but it did not work properly. Id.

{¶ 13} During his testimony, Hesler did not dispute that he attempted to record the March 8, 2018 meeting. However, Hesler testified that he was not only representing Miller during that meeting but was also appearing on behalf of other union members who had complaints regarding a supervisor. He claimed his representation of the other officers constituted concerted activity because it was an investigatory meeting. Hesler testified that when he was called into Magill's office and was asked about the existence of a recording, he admitted that he had tried to record the meeting. He testified that Magill then became angry and told him to leave the office. Hesler testified that he knew his phone had failed to make a recording, but before he could explain, Magill ended the meeting and Hesler's attempt to explain was "cut off." Exh. C, p. 116.

{¶ 14} Following the hearing, the arbitrator determined that the Board lacked just cause to terminate Hesler's employment and ordered that he be reinstated with full benefits. In doing so, the arbitrator found Hesler's conduct was protected by the exception clause contained within the Recording Policy. In her decision, the arbitrator stated:

[Hesler] contended that he believed recording the meeting was not a violation as he was engaged in concerted activity protected by the National Labor Relations Act (NLRA). The Union argues in its post hearing brief * * * that the Workplace Recording Policy specifically exempts Union Activity from its prohibition on workplace recordings. Further, since [Hesler] attempted to make the recording while acting in his Union capacity, it was concerted activity and thus permissible under the express terms of the policy.

The Employer argues * * * that the NLRA does not apply to this Employer because it "expressly" does not apply to state and local governmental employers ( 29 U.S.C Sec 152(2) ). Additionally, the Employer contends that the reference to "other applicable laws and regulations" cannot be cause to read into the Workplace Recording Policy a right of

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